Friday, June 13, 2014

Judge to Consider Retrial or Dismissal in Malcolm Smith Case

As prosecutors hurriedly assembled a team of translators to transcribe 28 hours of Yiddish conversation, a federal judge said on Friday that he would entertain written arguments to help him determine whether the untranslated material might warrant a mistrial or a dismissal of the bribery indictments against State Senator Malcolm A. Smith and two other defendants.

It is far from clear that Judge Kenneth M. Karas, of United States District Court, would actually take either step. But he postponed further testimony until defense lawyers had time to digest what was on the recordings and, as he put it, perform “the mental gymnastics to figure out the pieces of the puzzle.” However long that takes — and he did not set a firm schedule — he will also ask the 12 jurors on Tuesday whether they can extend their service beyond late June, the time he had promised.

If they cannot, he could declare a mistrial and impanel a new jury.

Assembling a dozen Yiddish translators would be no small feat, given the paucity of expert speakers. Defense lawyers would also need time to review and digest an additional 48 hours of English conversation recorded on the wiretapped phone of Moses Stern, a Rockland County developer who cooperated with the federal government to avoid a long prison sentence.

Two assistant United States attorneys, Justin Anderson and Douglas B. Bloom, said they had not turned over the recordings earlier because there was nothing in them that would be beneficial to the defense. Defense lawyers nonetheless maintained that the conversations could bolster their contention that their clients were illegally entrapped.

Without the recordings, said Gerald L. Shargel, Mr. Smith’s lawyer, “I do not say this lightly, but I cannot be effective on behalf of Senator Smith.”

“I am not comfortable at all, constitutionally uncomfortable, starting cross-examination,” he added, calling for a mistrial.

Mr. Smith, Democrat of Queens and at times the State Senate’s majority leader and minority leader, is on trial on charges of conspiring to bribe Republican county leaders to allow him to run for mayor of New York City as a Republican.

Though the judge seemed disinclined to accept the argument, Vinoo P. Varghese, the lawyer for Daniel J. Halloran III, a Queens Republican and former city councilman who is accused of being Mr. Smith's go-between, contended that the failure to deliver the recordings before the trial amounted to prosecutorial misconduct sufficient to warrant dismissal.

Deborah N. Misir, a lawyer for Vincent Tabone, a former vice chairman of the Bronx Republican committee, said prosecutors had put defense lawyers in an untenable position by asking them to absorb the material in a weekend. The Yiddish on the recordings, she said, was of a dialect distinct to Mr. Stern’s Satmar Hasidic sect and may not be fully comprehensible to conventional translators on such short notice.

“My client is not a wealthy man,” she said in arguing for a dismissal. “It’s not easy for him to pay for a trial and then pay for a second trial.”